The grounds for marital breakdown are set in the Civil Code and in the Marriage Act. If one does not fulfil the criteria set down for separation, divorce or annulment, one cannot get separated, divorced or have the marriage declared null.
... it will be unreasonable to restrict the grounds of separation when the real reasons are very wide- Ann Marie Mangion
But is it possible that the legal criteria differ from the real reasons of marital breakdown?
Sometimes, couples cannot obtain a declaration of nullity because their marriage is not null ab initio. However, that does not necessarily mean that there was not a marital breakdown.
The same goes for separation. Are the grounds set for separation the only real causes for separation?
One has to make a clear distinction between what is legal and what is not.
The grounds for separation and divorce in the Civil Code and those for annulment set in the Marriage Act are purely of a legal nature and do not necessarily encompass the diverse spectrum of causes of marital breakdown. It is impossible to list all the causes of marital breakdown.
Are the grounds too restrictive? Do they really cover all possible causes?
One of the grounds for separation mentioned by the Civil Code is adultery. But is adultery as common as we think? What is understood by adultery? Does it only refer to sexual acts or does it also refer to that special friend the husband or the wife has? Can there be adultery without sexual acts? For example, we often hear the wife or the husband complaining that their spouse gave them up not for another sexual partner but for friends, or for work or for a hobby. Do these amount to adultery?
The Civil Court (Family Section) in AB vs CD (326/2004), decided last January 26, stated that adultery is an intimate relationship.
Therefore, it’s not like any other platonic relationship but there should be a level of intimacy involved.
In another case decided on the same date by the same court (205/2008), the judge noted that adultery was not proven nor had there been any special friendship.
Therefore, it seems that adultery must always have some sort of intimacy, otherwise, if intimacy were not involved it is merely a special friendship.
Adultery might be alleged on the basis of a number of factors: text messages, a special close friendship, late nights out, photographs, rumours, phone calls, e-mails and so on. However, for adultery to exist one needs to prove it and not remain on the suspicion level.
Marital breakdown may also be due to domestic violence against the other spouse or even cruelty, excesses, grievous injury or threats against children.
Domestic violence does not necessarily need to be physical even though most people make the mistake of associating domestic violence with physical abuse. Domestic violence can also take the form of emotional abuse, verbal abuse and even financial abuse where a spouse having financial prowess maintains financial control over the less financially independent spouse.
Emotional abuse and verbal abuse might not be that obvious due to the fact that the abuse does not leave any visible marks, bar the sadness, but that still amounts to domestic violence.
Emotional abuse might take the form of turning the children against the other parent or by subjecting him/her to humiliation to control the other spouse in doing what the other spouse wants.
Verbal abuse amounts to belittling the other spouse and so on.
Domestic abuse is very damaging, especially on the children who will not know any better.
The other ground is desertion or abandonment. There are instances where one of the spouses packs up and leaves. This is common when one of the spouses is a foreigner.
Then we have the blanket provision where the marriage has irretrievably broken down. This covers all causes of marital breakdown, be it a special friendship, late nights out, work, psychological anomalies that one cannot live with or simply falling out of love that is growing apart.
This is a blanket provision that covers every possible aspect of a marital breakdown that might not be specifically stated in the Civil Code.
Is it healthy and wise to have such a blanket provision? It is because it is impossible to specify all causes of marital breakdown and if the legislator does so there is the risk of omitting some cause unless it is a non-exhaustive list.
The reasons for marital breakdown are not only those listed in the Civil Code. Those mentioned are simply there to base the separation on but they do not necessarily cover all the possible reasons for marital breakdown.
That is why the blanket provision of irretrievable breakdown is justified because it will be unreasonable to restrict the grounds of separation when the real reasons are very wide.
Dr Mangion is a lawyer and a published author with a special interest in family and child law.